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This issue brings us to the trial of Zacarias Moussaoui, much touted by the administration as an example of a successful terrorist prosecution by the Bush Justice Department. It is not. It was a three-and-a-half year legal nightmare for the prosecution. Using Brady, Moussaoui demanded to depose numerous detained enemy combatant witnesses. The judge found he was entitled access to three of them. Understandably, the government did not want to grant one terrorist the ability to question another, nor to disrupt captives undergoing their own interrogation processes. When informed it could not comply, the court denied the government the ability to argue for the death penalty.

Moussaoui also used Brady to request reams of classified documents via the Classified Information Procedure Act (CIPA). The process usually entails the government rewriting classified documents as classified summaries and giving them to a security “cleared” defense counsel. Moussaoui, the terrorist, insisted on his constitutional right to defend himself so he could personally review the classified summaries. When allowed to write his own motions, Moussaoui filed threats against public officials. When he was in court, Moussaoui ranted that he prayed for the “destruction of the Jewish people.”

More by Victoria Toensing

The appellate court restored the death penalty. However, other appellate remands had not been completely worked out at the trial court level when Moussaoui decided to plead guilty, over his counsels’ objection. Even though Moussaoui admitted during his plea that he had communicated directly with OBL and trained at a terrorist camp, that he “knew of al Qaeda’s plan to fly airplanes into” the White House and World Trade Center Towers, that he had agreed to “participate” in that plan, and that when he was arrested he lied to the FBI because he wanted the mission “to go forward,” the jury declined to give him the death penalty.

Unsatisfied with escaping death, Moussaoui made a rare appeal of a guilty plea claiming, in part, he was forced to plead because of not having access to classified documents and fellow terrorists. It took the appellate court 78 pages to discuss the issues, holding that because he pleaded guilty he had waived those arguments. Good lesson for KSM. Go to trial because the Brady and CIPA issues await you.

Then there are the problems of a judge needing lifetime security after trying a terrorist case, a la former judge Michael Mukasey who presided over the 1993 World Trade Center bombing trial, and a jury being skewed against the prosecution for fear of retribution if voting for conviction or the death penalty.

John Brennan, White House counterterrorism adviser, was recently asked what was the downside for treating Abdulmutallab as an enemy combatant. He replied there were no “downsides or upsides.” Brennan is misinformed. Cost, security, and abuse of our criminal procedures are downsides for treating enemy combatants as regular criminals. Guantanamo has secured facilities. Military tribunals are constitutional. There is no downside for using them.

Victoria Toensing, former deputy assistant attorney general (criminal division) and chief counsel for the Senate Select Committee on Intelligence, is founding partner of diGenova & Toensing.